Popular digital healthcare insurance myths debunked

Although large telemedicine entities sometimes offer blanket cover for providers performing services on their behalf, the provider/sub-contractor should always ensure they are covered, and that the insurer agrees to extend to the sub-contractor services. Some insurers see telemedicine services as a technology service only and would not extend to services provided online. 

In addition, individuals who are working for a larger organisation, will typically have access to the organisation’s systems, data, and records. If the individual causes a cyber breach (perhaps by leaving a computer system unlocked or clicking on a malicious email), this can encrypt the organisation’s whole system. It’s highly likely the individual will be held liable for this breach. With the increase of working from home, cyber-attacks on individuals are becoming more common.

CFC offers the bespoke eHealth solution to both individuals and organisations, ensuring individuals are able to appropriately protect themselves from any accidental breaches of third party systems.

When offering health services via a platform, the platform act on behalf of the health services by offering access and facilitation of that service. This means there is a huge contingent exposure for the platform, if a claim occurred the platform could potentially be named in the lawsuit for providing the patient with access to substandard care (if there is any subsequent negligence committed).

This could be because the platform failed to conduct background checks on the health service providers, or simply because the platform failed to ensure the service providers carried sufficient insurance. Telemedicine platforms should have defence costs to extract them from any legal action where the service provider(s) are found at fault or jointly at fault. 

CFCs eHealth policy provides contingent liability for providers performing services on behalf of the first name insured to protect an entity should an individual’s policy not respond for any reason.

Historically, brokers have sourced two or three policies for a single entity due to a lack of an all-encompassing product. Having separate policies with different insurers can create gaps in coverage when a claim occurs, especially where the proximate cause of a claim is ambiguous. Typically, traditional policies would carry exclusions which would push the claim to another policy.  For example, a medical malpractice policy would include a bodily injury exclusion from a cyber event, and a cyber policy would include a complete bodily injury exclusion or at best may offer a small sublimit.

This can lead to the insured having to pay two deductibles (if the claims are accepted), or in a worse possible scenario, leave the insured exposed to the potential for the claim to be denied.

For these reasons, CFC created their eHealth policy which brings everything together into one bespoke policy to ensure there are no gaps in cover.  

The development and use of artificial intelligence (AI) is constantly evolving, as shown with the federal spending on AI in the US rising to nearly $1billion in 2020. Through aspects such as clinical triage, disease detection and chat bots, AI has the ability to reduce provider burn out and increase the efficiency of the healthcare system.  

However, AI is raising profound questions regarding medical responsibility. It’s easy to determine where the claim came from, i.e human error, technology failure, cyber event but with AI, the line is extremely blurred. Although AI can be considered a ‘technology product’, there is still a human component originating from the idea behind the AI (the input of information, the ongoing accuracy reviews, as well as the end provider). Considering this, it’s extremely hard to pinpoint where the blame will lie, particularly with the lack of case law in the sector.

Under CFC’s eHealth policy, we provide affirmative bodily injury cover from multiple triggers, including professional / healthcare services, technology events and cyber, including ransomware.

With an unprecedented number of digital health companies entering the market every month, it is becoming harder to create completely unique ideas, processes, and names to existing competitors. Companies can still be accused of breaching intellectual property (IP) rights despite having thought they created something unique, if an existing company alleges it is too similar to their own.

Additionally, it’s very common for individuals from competitor companies to be headhunted and employed to lean on for experience and expertise, but it can lead to legal complications. If a competitor feels the individual has the potential to bring over ideas or trade secrets obtained from their previous employer, this can potentially lead to an intellectual property claim.

Typically, traditional insurance policies do not extend to intellectual property claims, however CFC understands that this is a prevailing issue for digital health companies, so has included this cover as standard in the eHealth policy to protect insureds against claims of this nature.